19 January 2023 – The Hindu

Astonishments that endanger the Constitution

Context:

• In April 2023, it will have been fifty years since the Indian Supreme Court decided Kesavananda Bharati v. State of Kerala. In Indian history, the choice is usually viewed as a turning moment. It was agreed that the Court’s decision that Parliament’s power to amend the Constitution was not plenary and that any amendments that would compromise the document’s core principles would be considered illegal had helped to preserve our republic.
• The Collegium Method is a system for the appointment and transfer of judges that was created by Supreme Court rulings rather than by an Act of Parliament or a Constitutional provision.

Modifications to the System:

• According to the First Judges Case, the recommendation of the Chief Justice of India (CJI) on judicial appointments and transfers may be disregarded for “cogent considerations” (1981). The Executive would have precedence over the Judiciary in appointing judges for the subsequent twelve years.
• The Supreme Court established the Collegium system in the Second Judges Case (1993), finding that “consulting” in the constitution translates to “concurrence.” It was further clarified that this was not the CJI’s personal judgement but rather a decision made by the institution in cooperation with the two senior judges of the SC. Thus, the first collegium system was composed by CJI and two of his senior most colleagues.
• On the President’s recommendation, the SC expanded the Collegium to a five-member body, comprising of the Chief Justice of India and four of his most senior colleagues (Article 143)
• In the years after the judgement, if not right away, succeeding governments have acknowledged its importance. Since then, rather than focusing on the concept’s validity, the majority of criticisms have been on how it is used. However, last week, India’s Vice-President Jagdeep Dhankhar criticised the Supreme Court by contesting the decision’s legality.
• Both Mr. Dhankhar and Kiren Rijiju, the Union Minister of Law and Justice, have questioned the Court’s choice to quash 2015 attempts to replace the collegium with a National Judicial Appointments Commission (NJAC). Since then, the vice-tirade president’s attacks on Kesavananda have increased the fervour of this criticism.

National Judicial Appointments Commission (NJAC):

• A constitutional body called NJAC was suggested to replace the current Collegium system of judicial nomination. It was established by the 2014 99th Constitutional Amendment Act.
• The Chief Justice, the Prime Minister, and the Lok Sabha opposition leader made up the committee. Along with the Union Law Minister and two “eminent people” who were nominated for a three-year term, it also featured the two most senior SC judges.
• The Supreme Court’s Constitutional bench deemed both the NJAC Act and the 99th Constitutional Amendment illegal for breaking the “Basic Structure” theory, which also upholds judicial independence.
• The Basic Structure Doctrine is under threat:
• In an address at the 83rd All India Presiding Officers (Assembly Speakers) Conference in Jaipur in January 2023, the Vice President said that “in a democratic society, the fundamental of any basic structure is supremacy of the people, sovereignty of parliament.”
• The highest authority belongs to the legislature. The members of other institutions are also chosen by the legislature. In this case, all institutions must adhere to their respective mandates. Without permission, one may not enter another person’s territory.
• Then Mr. Dhankar increased his attack and questioned the veracity of the basic structure concept. He said that whether the Court’s viewpoint was accurate “must be addressed.” Can the Parliament enable another authority to influence its decision?
• Naturally, the Court’s ruling upholding the validity of the body and serious criticism of the Collegium’s actions should be appreciated. The current criticism, however, is, at best, unprincipled and, at worst, an attempt to undermine the independence of the judiciary given that the Government has no plans to make any systemic changes to how we choose judges, as Mr. Rijiju stated in Parliament last month, and given that the Government itself has done little to increase transparency in the selection process.
• The Vice-President has pushed his criticism so far that he now reserves his complaints for both the Kesavananda decision and the collegium as a whole, implying that the latter is most likely the case.

The fundamental ideas of the Constitution are:

• A collective effort led to the creation of our Constitution. That vision was founded on ideals such as the notion that India would be run in accordance with the rule of law, that our governmental structure would be based on Westminster parliamentarianism, that the legislature, the executive, and the judiciary’s respective roles would be clearly defined, that the courts would be independent of the executive branch, and that our States would have unrestricted control over particular spheres of governance.
• What happens if one or more of these principles are compromised by a constitutional amendment, changing the way the Constitution operates? The 1950-approved Constitution would still be in effect, right? If Parliament changed the Constitution to transition from the Westminster system to a presidential form of government, would the Constitution’s integrity still be upheld? Consider another option that is a little more radical: Can the Parliament modify the Constitution to eliminate the Article 21 protection for the right to life? Wouldn’t this result in a law being created that is no longer referred to as “the Constitution of India”?
• German academic Dietrich Conrad once stated that “any modifying body created within the statutory scheme, regardless of theoretically vast its power, cannot by its own construction change the key foundations backing its constitutional authority.”

About “amendments”:

• Parliament is a creation of the Constitution, as the Supreme Court would later state in Minerva Mills v. Union of India (1980). In that case, the survival of the idea that fundamental rights are unalienable was in fact at stake.
• As a result, it can only possess these powers if they are expressly bestowed to it. The Court came to the conclusion that if those powers were thought to be unrestricted, Parliament would cease to be a constitutional authority and would instead “become supreme above it, because it would have power to modify the entire Constitution, including its fundamental structure.”
• In other words, the understanding that the Constitution’s original version was founded on a morally sound basis is the foundation for the belief that Parliament cannot change the Constitution’s fundamental principles.
• This view states that when reading the Constitution as a whole, the fundamental structural theory can be seen as implicit. But it is also deductible through a definition of the phrase “amendment,” as Justice H.R. Khanna pointed out in his crucial finding in Kesavananda. According to the dictionary, a “amendment” is “a little alteration or addition intended to improve a text.”
• Justice Khanna contends that the process no longer qualifies as a mere modification since the Constitution that emerges from the procedure for amendment described in Article 368 is not only the Constitution in an altered form, but also a Constitution devoid of its core structure.

Conclusion:

• Following its ruling in Kesavananda, the Supreme Court has defined a number of features that cannot be altered. There is no denying that the Court has occasionally applied these characteristics in an illogical manner. However, if the basic structure hypothesis were deemed unconstitutional on its own, the Constitution would be susceptible to the whims of the legislature.
• Theoretically, accepting the Vice-assertions President’s decisions wholeheartedly would permit Parliament to cede its own power and select a dictator for the country. Consider the consequences.